Hemp Regulation: USDA Struggles with Drafting THC Testing Guidelines

Hemp stakeholders have been eagerly waiting for the release of guidelines and regulations by the U.S. Division of Agriculture (“USDA”). Despite the fact that the 2018 Farm Bill removed the hemp and its derivatives from the Controlled Substances Act, it did not present clear, constant and trustworthy requirements to safely and lawfully make the crop. As an alternative, the new law tasked the USDA with adopting these requirements with which states and Native American tribes wishing to regulate the crop inside their borders will have to comply.

Earlier this summer season, the USDA announced in a notice published in the Federal Register that it aimed to release its interim final rule in August. Having said that, many comments lately produced by USDA representatives recommend that the agency is struggling to meet its deadline. Particularly, the agency appears to be wrestling with the drafting of THC testing requirements.

THC Testing requirements matter for the reason that THC concentration is the important aspect in differentiating hemp from marijuana. It is the distinction among a regulated agricultural commodity and a Schedule I controlled substance. Without the need of a national THC testing typical marijuana and hemp are practically not possible to differentiate for the reason that they appear, smell and really feel the exact same.

Pursuant to Section 297B (a)(two)(A)(ii) of the 2018 Farm Bill, states and Native American Tribes looking for regulatory authority more than the production of hemp ought to submit a strategy to the USDA that involves, in portion,

a process for testing, utilizing post-decarboxylation or other similarly trustworthy techniques, delta-9 tetrahydrocannabinol concentration levels of hemp made in the State or territory of the Indian tribe[.]”

As I explained in a prior post, there is no “postdecarboxylation” testing system per se, and while the congressional intent of the 2018 Farm Bill apparently was to refer to a testing system recognized as gas chromatography (“GC”), this system has been heavily criticized by stakeholders for the reason that it tends to enhance the THC concentration in the hemp sample and pushes it more than the .three % limit.

So it is not totally surprising that the USDA is struggling to craft THC testing requirements with so tiny guidance.

Sadly, this delay is additional exacerbating state and nearby enforcement authorities’ capability to differentiate hemp from marijuana. As of now, most jurisdictions lack the sources to test for certain levels of THC and differentiate hemp from its illegal cousin, marijuana. The patchwork of testing requirements across states has additional hindered the lawful sale of hemp nationwide. Just after all, why impose a .three % THC threshold if the states are imposing 50 distinctive testing requirements?

Establishing a trustworthy and uniform testing typical is only 1 of numerous other requirements the USDA wants to promulgate in order to fulfill the intent of the 2018 Farm Bill. Implementing a process for tracking the supply of the crop and its completed items is as crucial as the adoption of a uniform testing typical. Certainly, the 2018 Farm Bill legalized hemp grown pursuant to a state or Native American tribe strategy. This signifies that not all hemp is treated equal, even if the tested crop includes no additional than .three % THC.

As such, hemp sector players ought to preserve records displaying the supply of the plant, like but not restricted to the grower’s license beneath which hemp was cultivated as properly as the certificate of evaluation (“COA”) for every batch of hemp or completed hemp item tested displaying that they include no additional than .three % THC. If your corporation is dealing in hemp, you ought to know specifically exactly where it was grown and ought to be ready to prove it.

The lawful production and sale of hemp and hemp items is a complicated business enterprise that needs cautious preparing and due diligence. As such, hemp stakeholders ought to seek advice from with lawyers who completely comprehend the field in order to mitigate their dangers and thrive in this pretty unregulated marketplace.